Opinion
(June Term, 1860.)
1. Under a charter for mutual insurance against loss by fire it was Held that every member of the company is bound by the conditions annexed to the policies through the by-laws.
2. Where one of the by-laws of a mutual insurance company required that the insured, within thirty days after loss by fire, should give notice to the company, specifying the amount of loss, the manner of it, and other particulars as a condition to his right to recover, it was Held that a declaration to the insured by a traveling agent of the company, that "the matter would be all right with the company," was not a waiver of the necessity of such notice.
COVENANT, on a policy of insurance against fire, tried before Dick, J., at last Spring Term of WASHINGTON.
P. H. Winston, Jr., for plaintiff.
W. A. Moore and J. H. Bryan for defendant.
The plaintiff having proved the destruction by fire of the house insured, and the execution of the policy by the defendant, the defendant moved that the plaintiff be nonsuited, on the ground that the plaintiff had not complied with the stipulation of the contract of insurance as contained in the company's by-laws, and especially the terms of the following provision, which is section 10 in this pamphlet containing the laws of the company:
"All persons insured by this company, and sustaining loss or damage by fire, are forthwith to give notice thereof to the secretary, and within thirty days after said loss to deliver a particular account of said loss or damage, signed with their own hands and verified by their oath or affirmation, and also, if required, by their books and accounts and other proper vouchers. They shall also declare under oath whether any or what other insurance has been made upon the property, what was the whole value of the property insured, when and how the fire originated, so far as they may know or have reason to believe, and what their interest in the property insured was at the time of the loss or damage sustained. They shall also procure certificates under the hands of a magistrate, notary public, or clergyman most contiguous (374) to the place of the fire, and not concerned in the loss or related to the insured or sufferers, that he is acquainted with the character and circumstances of the person or persons insured, and knows, or verily believes, that he, she, or they really, and by misfortune, and without fraud or evil practice, hath or has sustained, by such fire, loss and damage to the amount therein mentioned; and until such proofs, declarations, and certificates are produced, the loss shall not be deemed payable; and shall state whether, since the time of effecting such insurance, the risk has been enhanced by any means whatever. And any misrepresentation or concealment, or fraud or false swearing by the insured in any statement or affidavit in relation to the said loss or damage shall forfeit all claim by virtue of the policy, and shall be a full bar to all remedies upon the same."
In regard to the notice, the evidence was that one of the agents of the company was present at the fire; that some ten or fifteen days after its occurrence the traveling agent of the company was in Plymouth, and, in conversation with the plaintiff, said that the matter would be all right with the company.
Upon this, the plaintiff's counsel insisted that this was evidence of a waiver of notice and a promise to pay without it, and was matter to be submitted to the jury; but his Honor thought otherwise, and ordered a nonsuit, from which the plaintiff appealed.
Woodfin v. Ins. Co., 51 N.C. 558, decided the point that the insured, in such a company, are members of the corporation and bound by the conditions annexed to the policies through the by-laws. In the by-laws of the defendant (the North Carolina company) it is required by section 10, that all persons insured and suffering (375) loss shall forthwith give notice thereof to the secretary, and within thirty days after said loss deliver a particular account of said loss or damage, signed with their own hands and verified by their oath or affirmation. They shall also declare, under oath, whether any and what other insurance has been made on the property, what was the whole value of the same, what the loss, and what the interest of the insured in the property at the time; and until such proofs, declarations, and certificates be produced, the loss shall not be deemed payable, etc.
A compliance with these conditions is necessary in order to fix the liability of the company upon any of its policies. In Woodfin v. Ins. Co., supra, it will be found that the conditions there in question were similar in all respects to those above quoted from the by-laws of the North Carolina company. So that the case is in point to the extent that unless the conditions of these policies be strictly complied with the insured cannot recover, except a compliance be in some way dispensed with by the company.
The only open question, therefore, apparent upon the case is, Did that which is stated to have occurred between the plaintiff and a person, denominated "the traveling agent" of the company, amount to any evidence of a waiver of the requirements of the by-laws?
We concur with the Court below in the opinion that it did not. The traveling agent said to the plaintiff, in a conversation in Plymouth, "the matter would be all right with the company." It is not stated to what this declaration was a response, or in what connection it was made, and we are unable to see that it tended, of itself, in any way to prove that the agent undertook for the company that it should pay at all events. It seems to be merely an affirmation on the part of the agent that the company will comply with the obligations of the policy. It dispenses with nothing, but rather implies a warning that all must be right with the insured. The declarations, under oath, prescribed in section 10 of the by-laws, are required to be made to the (376) secretary of the company — doubtless, for the company's action.
In the absence of all proof upon the subject, a power to dispense with or waive would reside only in the president and directors collegealiter, and one who is simply described as a traveling agent cannot be presumed to have that power. Our inferences, if at liberty to draw them, would be that the agent was employed to guard the company, by observation and inquiry, against imposition, not to dispense with the safeguards which it has thought proper, in orther [other] ways, to throw around itself.
But whatever may be the scope of the traveling agent's duties and powers, we are of opinion that what occurred between him and the plaintiff afforded no evidence of a waiver on the part of the company of the conditions of the policy as contended in section 10 of the bylaws.
PER CURIAM. Affirmed.
Cited: Gerringer v. Ins. Co., 133 N.C. 417.